(after stating the case). Section 326 of The Code, as amended by ch. 50, sec. 2, of the Acts of 1885, provides for the return of property taken under proceedings in claim and delivery, upon giving an undertaking by the defendant, payable to the plaintiff, executed by one or more sufficient sureties, &c., for the delivery thereof to the plaintiff, with damages for its deterioration and its detention, if delivery can be had, and if such delivery cannot for any cause be had, for the payment to him of such sum as may be recovered against the defendant for the value of the property, at the time of the wrongful taking, or detention, *280with interest thereon, as damages for such taking and detention.
Section 43 L of The Code provides: “ In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession, or for the recovery of possession, or for the value thereof in case a delivery cannot be had, and the damages for the detention.”
This action isbrought to recover the possession of an engine and saw-mill. The defendants admit that they are in possession of the engine and saw-mill, and deny the other allegations of the plaintiff. Nowhere in the record does it appear that the plaintiff had, or is seeking to recover any debt against the defendants, and if there was such a claim it would not be covered by the undertaking of the sureties of the defendants.
The only issues passed upon are the first and second, and the only facts found by the jury are that the plaintiff is the owner of the saw-mill and engine, and that he is entitled to the immediate possession. No other issues were passed upon. It nowhere appears by the finding of the jury, or in any other way, that the plaintiff has sustained any damage by the deterioration or detention of the property. Upon a careful inspection of the record, we can nowhere find any allegation, admission, or finding of any fact upon which the judgment rendered at Fall Term, 1886, could have been for anything but restitution, and if there were that judgment is not such as is contemplated by the statute to bind the sureties upon the defendants’ undertaking.
Unquestionably, a plaintiff is entitled -to summary judgment against the sureties in an “ undertaking of defendant to retain property,” where the judgment is “ for the possession, or for the recovery of possession, or for the value thereof in case a delivery cannot be had, and the damages ” for its detention. Insurance Co. v. Davis. 74 N. C., 78 ; Harker v. Arendell, ibid, 85, and cases cited. But the judgment must *281be such as is authorized by law. The Code, § 431 ; Council v. Averett, 90 N C., 168; Horton v. Horne, 99 N. C., 219; Manix v. Howard, 82 N. C., 125.
We are not inadvertent to the fact that this action was commenced prior to the amendment by chapter 50, Acts of 1885, but that in no way affects the character of the judgment, and the effect of'the amendment is to make the condition of the bond harmonious with the judgment authorized.
Our attention is called to the fact that the judgment, in Council v. Averdt, supra, was not in the alternative, as required in claim and delivery, but was similar to this. A glance at the case will show the difference. There, by agreement, the alternative judgment was dispensed with, and by consent, a judgment was entered for the value of the goods taken, and the Court, after stating and recognizing the proper mode of entering judgment, puts the decision upon the ground of agreement and consent.
But the learned counsel for the plaintiff says that no objection was made to the judgment rendered at Fall Term, 1886. In that judgment the cause, was “ held for further direction and trial of the remaining issues.”
No one of the remaining issues has been tried, and the trial and finding upon at least one of them' is necessary, to determine the liabilities of the sureties on the defendants’ undertaking.
Error. Venire de novo.